Transfer and Relocation Policy

Transcription

1 ELECTRICITY NETWORKS CORPORATION ( WESTERN POWER ) ABN {Outline: This transfer and relocation policy is included in Western Power s access arrangement in accordance with section 5.1 of the Code.} {Note: This policy has been prepared in accordance with the requirements of the Electricity Networks Access Code 2004, including proposed Electricity Networks Access Code Amendments (No 2) 2008} DM#: v3

2 CONTENTS 1. Defined terms and interpretation Defined terms Interpretation 3 2. Application of this transfer and relocation policy Application in respect of an access contract Application in respect of a customer transfer request 3 3. Assignment only under this transfer and relocation policy 3 4. Bare transfers User may make bare transfer User must notify Western Power of the details of the bare transfer Bare transfer does not release the user 4 5. Assignments other than bare transfers Western Power s consent required Deed of novation Assignment to financially and technically competent persons 5 6. Relocation Occurrence of relocation Access contract provisions in respect of a destination point Access contract provisions in respect to a retiring point Western Power s costs 6 DM#: v3

3 1. Defined terms and interpretation 1.1 Defined terms access arrangement means the current access arrangement approved in respect of the network under the Code. access contract has the meaning given to it in the Code. access rights means all or part of a user s rights under an access contract to obtain a covered service. applications and queuing policy means the applications and queuing policy under the access arrangement. assign means to assign or novate a user's access rights under an access contract to another person, and may take the form of a bare transfer or a novation. assigned access right means any access right that is or is proposed to be the subject of an assignment. "assignee" means a person who makes an assignment. assignment means an assignment of a user's access rights under an access contract to another person, and may take the form of a bare transfer or a novation. "assignor" is a person who takes an assignment. bare transfer means an assignment under which the assignor assigns the whole or a part of its access rights under an access contract to an assignee, but under which there is no novation, with the result that the assignor s obligations under the access contract for services, and all other terms of the access contract for services, remain in full force and effect after the assignment, whether or not the assignee becomes bound to the assignor or any other party to fulfil those obligations. bare transferee means a person who takes a bare transfer. "bidirectional point" has the meaning given to it in the applications and queuing policy. capacity, for a connection point, refers to the capacity of the network to transfer electricity at the connection point. connection point means an exit point or an entry point or bidirectional point identified or to be identified as such in an access contract. contracted capacity, for a connection point, means the maximum rate at which a user is permitted to transfer electricity to or from the network at the connection point, being either: DM#: v3 1

4 the rate specified in the user s access contract from time to time; or if no rate is specified in the user s access contract, the maximum rate of electricity permitted to be transferred under the reference service eligibility criteria for the reference service for that connection point in the user s electricity transfer access contract; or (c) if no rate is specified in the user s access contract or in the reference service eligibility criteria, the maximum rate of electricity permitted to be transferred through the connection assets under the technical rules, as applicable, and is measured in Watts or Volt-Amps. Code means the Electricity Networks Access Code customer transfer request has the meaning given in the customer transfer code. destination point has the meaning given in clause 6.1. encumbrance includes any lease, licence, native title right, easement, mortgage, charge, lien, pledge, deposit, hypothecation, restrictive covenant, building condition, retention of title or other interest of any third party affecting any property. "entry point" has the meaning given to it in the applications and queuing policy. "exit point" has the meaning given to it in the applications and queuing policy. law means written laws and statutory instruments as defined in the Code, orders given or made under a written law or statutory instrument as so defined or by a government agency or authority, Codes of Practice and Australian Standards deemed applicable under a written law and rules of the general law including the common law and equity. network has the meaning given to Western Power Network in the Code. novate and novation mean to substitute, with the consent of all parties to the access contract and with effect on and from a date nominated as the effective date of the novation, an assignee for an assignor as a party to an access contract, with the result that: all rights and obligations of the assignor under the access contract become rights and obligations of the assignee as if the assignee had been named in the access contract in place of the assignor; and the assignor is released from any obligations under the access contract arising on or after the effective date of the novation, but remains liable for any default by it in the performance of those obligations prior to the effective date of the novation. DM#: v3 2

5 relocation has the meaning given in clause 6.1. retiring point has the meaning given in clause 6.1. service, in respect of a connection point, means a covered service to be provided under an access contract in respect of the connection point. 1.2 Interpretation Unless: (i) the contrary intention is apparent: or (ii) the term has been redefined in clause 1.1, a term with a defined meaning in the Code has the same meaning in this transfer and relocation policy. Unless the contrary intention is apparent: (iii) a rule of interpretation in the Code; and (iv) the Interpretation Act 1984, apply to the interpretation of this transfer and relocation policy. 2. Application of this transfer and relocation policy 2.1 Application in respect of an access contract Unless otherwise expressly stated in an access contract, this transfer and relocation policy applies in its entirety to each access contract. 2.2 Application in respect of a customer transfer request This transfer and relocation policy does not in any way apply to a customer transfer request. 3. Assignment only under this transfer and relocation policy A user must not, except as expressly permitted by this transfer and relocation policy: (c) assign, novate, declare itself a trustee of, or otherwise dispose of, any of its rights under an access contract; or subcontract the performance of its obligations under an access contract; or create an encumbrance over any of its rights or obligations under an access contract. DM#: v3 3

6 4. Bare transfers The provisions in this clause 4 apply to a bare transfer. 4.1 User may make bare transfer Subject to clause 4.2, a user may make a bare transfer without Western Power s prior consent. For the avoidance of doubt, a bare transferee does not become a user by virtue of any bare transfer. 4.2 User must notify Western Power of the details of the bare transfer If the user makes a bare transfer, the user must notify Western Power of: the identity of the assignee; and the nature of the assigned access rights, before the assignee may commence using the assigned access rights. 4.3 Bare transfer does not release the user A bare transfer does not constitute a novation, and does not result in: (i) (ii) the release of the user in any way from any of its obligations to Western Power under the access contract; or the release of any provider of any bank guarantee under the access contract from any liability to Western Power under that bank guarantee. (c) The user remains wholly liable to Western Power for any default under the access contract in accordance with its terms, whether caused by the user, the assignee or any other person. The provider of any bank guarantee under the access contract remains wholly liable to Western Power in accordance with the terms of that bank guarantee. 5. Assignments other than bare transfers The provisions in this clause 5 apply to an assignment other than a bare transfer. 5.1 Western Power s consent required For an assignment other than a bare transfer, the following provisions apply. A user may not assign all or any access rights without Western Power's prior written consent. DM#: v3 4

7 (c) Western Power is not required to give its consent to the assignment unless, under the proposed assignment, the assignee is bound to Western Power under terms that are identical to the terms of the access contract between Western Power and the user. Western Power's consent shall not be unreasonably withheld or delayed where the user can satisfy Western Power (acting on reasonable commercial and technical grounds) that the proposed assignee is financially and technically capable of performing the user s obligations in respect of the assigned access rights. 5.2 Deed of novation The assignor and the assignee must enter into a deed of novation with Western Power in such reasonable form as Western Power requires, pursuant to which, on and from the effective date of the novation: (i) (ii) (iii) the assignee acknowledges Western Power's rights under the relevant access contract in respect of the assigned access rights, and undertakes to observe, perform and be bound by the user s obligations and to meet the user's liabilities in respect of the assigned access rights under the relevant access contract; and subject to any limitations and exclusions of liability in the relevant access contract, the assignor indemnifies the assignee and Western Power against, and agrees to defend and hold them harmless from, all liabilities and costs either of them may suffer as a result of any default by the assignor under the relevant access contract in respect of the assigned access rights occurring prior to the effective date of the novation, including any default whose effects do not crystallise until after the effective date of the novation; and Western Power releases the assignor from that part of the user s obligations and liabilities under the relevant access contract as relate to the assigned access rights. 5.3 Assignment to financially and technically competent persons Western Power is not required to give its consent to an assignment under clause 5.1 if it can reasonably demonstrate that such an assignment would have the effect of materially increasing its financial or technical risk under the relevant access contract. 6. Relocation 6.1 Occurrence of relocation A relocation occurs when a user: DM#: v3 5

8 decreases its contracted capacity at a connection point (a retiring point ); and makes a corresponding increase in its contracted capacity at another connection point (a destination point ). 6.2 Access contract provisions in respect of a destination point Western Power and the user must comply with any provisions in the access contract with respect to an increase of contracted capacity at a connection point, or an additional connection point, relating to a destination point. 6.3 Access contract provisions in respect to a retiring point Western Power and the user must comply with any provisions in the access contract with respect to a decrease of contracted capacity at, or a deletion of, a connection point, relating to a retiring point. 6.4 Western Power s costs A user who requests any assignment or relocation under this transfer and relocation policy shall reimburse Western Power for any cost incurred by Western Power, acting as a reasonable and prudent person, in processing such request. DM#: v3 6